' This judgment will dispose off Second Appeal No, 146/80 and F.R.A. No, 174/80, both filed by the appellants against the respondent. Ejectment Case No, 4500/77 was filed by the respondent/landlady against the two appellants for ejectment on the ground of default in the payment of rent by the appellant No, 1/tenant and on the ground that the appellant No, 1 had sublet the premises to appellant No,
2. The ejectment application was resisted by the appellants who filed a joint written statement. Evidence was recorded by the Rent Controller adduced by the parties and then the case was fixed for hearing the arguments when the 1959 Rent Ordinance was repealed and the 1979 Sind Rented Premises Ordinance came into force on 21st November, 1979. By order, dated 7th January, 1980 ejectment of the appellant was ordered. The appellants filed Rent Appeal No, 16/80 before the learned District Judge, Karachi but by order, dated 18th February, 1980, the learned District Judge held that section 21 of the 1979 Rent Ordinance provides for an appeal against the order of the Rent Controller to the High Court and, therefore, the appeal was returned to the appellants for presentation to the proper Court having jurisdiction. In fact it was held that the appeal before the learned District Judge was incompetent. The order of the learned District Judge is impugned by the appellants in Second Appeal No, 146/80 and it is the case of the appellants that Rent Appeal before the learned District Judge against the order of ejectment passed by the Rent Controller was competent. The memo of appeal that had been returned to the appellants for presentation to the proper Court pursuant to order, dated 18th February, 1980 of the learned District Judge was represented by them in this Court and the same has been numbered as F.R A. No, 174/80. I have heard Mr. Talmiz Burney, learned counsel for the appellants and Mr. Nasrullah Awan, learned counsel for the respondent.
2. Subsections (2) and (3) of section 27 of the Sind Rented Premises Ordinance, 1979, which require consideration end interpretation are reproduced here :- " (2) All appeals, and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (I) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance.
(3) All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall, notwithstanding any orders made otherwise by the Controller, be continued and disposed in accordance with the provisions of this Ordinance and any proceedings taken or orders made in any such case as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance."
' It was argued by Mr. Talmiz Burney, learned counsel for the appellants that as at the time the Sind Rented Premises Ordinance was enacted, ejectment case filed by the respondent was pending arguments, evidence having been already recorded and closed, the said ejectment case was required to be disposed off in accordance with the 1959 Rent Restriction Ordinance notwithstanding its repeal, in view of section 27(2) of the 1979 Ordinance. According to the learned counsel, therefore, the ejectment order passed by the learned Rent Controller was an order under the Rent Restriction Ordinance of 1959 and as such under the Ordinance of 19 59 the appellant's First Appeal to the learned District Judge was competent. On the other hand it was argued by the learned counsel for the respondent that in these facts the ejectment case had only to be disposed off in accordance with the 1959 Rent Ordinance but this did not mean that the appeal available to the appellants under the 1959 Rent Ordinance was still available to them. According to the learned counsel, in such cases the ejectment application had to be disposed off under the 1959 Rent Ordinance but an appeal lay directly to the High Court under section 21 of the 1979 Ordinance and, not to the District Judge.
3. It may be observed here that in support of his contention, Mr. Talmiz Burney, learned counsel for the appellants, relied upon a judgment of a learned Single Judge of this Court in the case of United Bank Limited v. Aijaz Amin (1) and judgment of a Division Bench of this Court in the case of Abdul Rehman v. Haji Mir Ahmed Khan and another (2). The judgment of the Division Bench in PLD 1982 Kar. 532 was affirmed by the Supreme Court in the judgment reported in PLD 1983 SC 21.
' In 1983 CLC Kar. 530 it was held by the learned Single Judge that 1979 Sind Rented Premises Ordinance did not take away the right of Second Appeal and that the right of the appeal was a vested right and it accrues on the date of institution of the proceedings and not on the date of decision.
In PLD 1982 Kar. 532 provisions contained in section 27(3) were considered and interpreted and it was held that in this subsection of the 1979 Rent Ordinance the words "be continued and disposed in accordance with the provisions of this Ordinance" have two separate disjunctive clauses and these words mean that proceedings instituted under the repealed 1959 Rent Ordinance shall be continued, and such words preserve and protect the basic rights of the parties, and the further words that the previous proceedings shall be disposed off in accordance with the provisions of the 1979 Rent Ordinance referred to the procedure that is to be adopted. According to the Division Bench, therefore, as regards the cases which were covered by section 27(3), the rights of the parties therein have to be regulated in accordance with the old Ordinance but the procedure that has to be adopted for the disposal of the old cases A would be under the new Ordinance. As observed earlier, the judgment of the Division Bench of this Court has been upheld by the Supreme Court in their judgment reported in PLD 1983 SC 21.
4. As is obvious, subsection (2) of section 27 relates to all appeals,1 and to all such cases which were pending before a Controller which were fixed for arguments or judgment and which had been filed under the 1959 Rent Ordinance, whereas subsection (3) of section 27 relates to all other cases instituted under the 1959 Rent Ordinance. In both categories of cases that is those covered by subsection (2) as well as by subsection (3), the law that is applicable for determining the rights of the parties is the 1959 Rent Ordinance. But in so far as cases that are covered by subsection (3) any order that is passed by the Rent Controller will be treated as if passed under the 1979 Ordinance and as such in cases to which subsection (3) of section 27 applies, when an appealable order is passed by the Rent Controller, only one appeal will lie and that to the High Court as the order of the Rent Controller will be treated as an order passed under the 1979 Rent Ordinance. On the other hand in so far as cases and appeals that are covered by subsection (2) of section 27, these cases and appeals are to be disposed off in accordance with the 1959 Rent Ordinance and as such the orders passed in such appeals or by the Rent Controller will be treated as orders passed in the 1959 Rent Ordinance and the parties aggrieved will have such rights of appeal as were available to them under the 1959 Rent Ordinance. If the interpretation that I sought to be placed by Mr. Nasrullah Awan, learned counsel for the respondent, is adopted it will mean that there is no difference in subsection (2) and subsection (3) of section 27 of the 1979 Rent Ordinance. This.
However, is not so as different language has been employed in the two subsections of section 27 and subsection (2) deals with certain type
(1) 1983 CLC 530 (2) PLD 1982 Kar. 532 of appeals and cases and subsection (3) deals with all other types of cases that were filed under the 1959 Ordinance but are not covered by subsection (2).
5. As a result I am of the view that appeal filed by the appellants against the ejectment order, dated 7th January, 1980 passed by the Rent Controller was competent before the learned District Judge. Second Appeal No, 146/80 is allowed to this extent. First Rent Appeal No, 174/80 may be returned to the appellants for representation before the learned District Judge, Karachi for disposal in accordance with the provision of the 1959 Rent Ordinance. On this appeal being presented before the learned District Judge a notice of the appeal will be issued to the respondent through Mr. Nasrullah Awan, Advocate. If any notice is to be issued to the appellants, the same will be issued to them through Mr. Talmiz Burney Advocate. It is directed that the learned District Judge or the Additional District Judge to whom the appeal may be transferred will dispose off the First Appeal within 3 months of the representation of the appeal before the learned District Judge.
' There will be no order as to costs.